(CNN) - Three states voted on referendums Tuesday on legalizing marijuana for recreational use:

Colorado voters have approved a referendum that supports the legalization of marijuana on a recreational basis.

Amendment 64 in Colorado will amend the state constitution to legalize and regulate the production, possession, and distribution of marijuana for persons age 21 and older.

“The voters have spoken and we have to respect their will,” Colorado Governor John Hickenlooper said in a written statement released by his office. “This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly.”

Similar provisions on marijuana use were also on the ballot in Oregon and Washington.

Washington State voters on Tuesday cast their ballots in support of an unorthodox way of raising tax revenue: marijuana legalization. The measure, Initiative 502, will legalize and regulate the production, possession and distribution of cannabis for persons age 21 and older.

The Washington referendum called for a 25% tax rate imposed on the product three times: when the grower sells it to the processor, when the processor sells it to the retailer, and when the retailer sells it to the customer. It’s not clear exactly how much tax revenue legalization would bring in. Estimates for the Washington measure run as high as $500 million – a figure analysts say is overstated.

Of course, things aren’t nearly quite that simple. Both states are going to be regulating the marijuana industry to a greater extent than most states regulate alcohol, for example. Most importantly, though, there’s the fact that Federal Law makes the sale and possession of marijuana illegal and that Federal authorities have regularly seen fit to enforce those laws even in states where the substance might be legal for limited purposes. When he first entered office, President Obama promised that his Justice Department would not interfere with dispensaries and other businesses licensed under California’s medical marijuana laws. Instead, the Justice Department has stepped up raised against dispensaries and cultivators, an action permitted by the Supreme Court’s unfortunate decision in Gonzalez v. Raich. Given that they’ve responded in this manner to a relatively limited program like the one in California, how might they respond to the new laws in Colorado and Washington which essentially make it as easy for an adult to get marijuana as it is to get a bottle of vodka?

“The voters have spoken and we have to respect their will,” Hickenlooper said on Amendment 64. “This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly.”

Hickenlooper’s amusing line aside, he’s largely correct. It’s unclear, for example, how this law is going to be implemented if the Federal Government insists on treating Colorado and Washington in the same manner that it treats California today. After all, what’s the difference between living in Colorado when marijuana is illegal and living in Colorado when it’s legal under state law but the Feds are cracking down on you anyway. And, remember, when the Federal Government prosecutes drug crimes you don’t end up with a 30 day stint in the county lockup, you end up with hard time in a Federal Prison under the Sentencing Guidelines that apply to all Federal crimes. The uncertainty hasn’t been reduced in the lease and, indeed, if I lived in Colorado in an era when the Feds said they were going to ramp up enforcement because of the new state law, I’d be even more afraid of the police than I was before.

In a rational world, of course, none of this would be the business of the Federal Government. As long as all of the activity is taking place inside state borders, such as in California where cultivation, sale, and consumption all take place inside the state, then the Federal Government should let the state laws stand. The only time that Washington should get involved is when activity is crossing state borders, such as if marijuana being grown in Colorado is being sold in Kansas or some such place. If Gonzalez had been decided correctly, that’s exactly the world we would be living in right now. Instead, we live in a world where state borders are meaningless and where the fact that the voters of two states have expressed their will on this issue may end up meaning next to nothing.

In the past, there has been some speculation that President Obama may take a new tack on the War On (Some) Drugs in a Second Term. I hope that’s true, and I hope it starts with an announcement that he’s directing his Justice Department not to prosecute people who are acting in compliance with the laws of the states in which they live.

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About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Comments

We often make comparisons to prohibition when we talk about the WoD. But I actually know very little about the history of how prohibition was brought to an end. Was it, like this, state-led. Is that the blueprint?

Like you, I certainly hope Obama “evolves” on this issue. I hope this is one of the things he was talking about back when he referenced… I think it was FDR?… saying something like “I agree with you. Now make me do it.”

Let’s not kid ourselves: the WoD is deeply entrenched. And it’s not just vested interests fighting to protect their budgets. This is an issue that is very easy to demogogue… in part because there really is downside. It’s just that the downside risk does not justify the “war” we’ve been waging. The smart legalization crowd understands that and makes that argument.

The “WoD” isn’t going to end anytime soon. My hope (not expectation), is that the fight against pot is toned down, with states being allowed to fiddle around with legalization or decriminalization.

It’s a no brainer to do this and unquestionably it should be a state-by-state issue. Except for ports and borders, however, for obvious reasons.

It’ll be interesting to see how the Obama DOJ handles this not only because of this specific issue, but more interestingly because it’ll give us an insight into how Obama’s mind is going to work now that he doesn’t have to worry about being reelected. But that applies to all issues, not merely to those about which the chattering classes are in favor.

Sure, of course, he might decide to suspend federal enforcement actions against pot dispensaries. And in various corners of the Internet they’ll cheer. But then he might also decide that he no longer cares about Pell grants. Why should he? He might also decide to block grant Medicaid money to the states as part of dealing with the GOP House on larger spending issues. It’s not as if Obama needs to worry about the lower-income vote. He might decide that he no longer cares about gay rights or equal pay for women. Why should he?

So we’ll see what happens. I have a sneaking suspicion there will be plenty of layers of irony.

Obama the Evolver will begin a “conversation.” That is all it will really take. At my local aPOThacary, there are now hundreds of THC-based products available from manufacturers all over California. Need breath strips for flying? Need a cocoa butter topical cream that not only soothes the joints but firms the skin? Want beer, ale, or cider? Cakes, cookies, and chips? Burritos, tacos, and nachos? This is all in addition to traditional buds, and all their derivatives: hashes, kiefs, and liquid gelcaps. 10% off for AARPers, 15% for military.

The weed infrastructure already exists. Only pieces of paper with antiquated laws printed upon them remain. LEOs will continue to question dedicating scare resources to it.

When I got my first script in CA, the doc just looked at what he called “pre arthritic nodes” on my hands and I was in. Did not need to utter a single word.

TWO states? The feds have to be scrambling. There isn’t enough law enforcement to control a plant that requires zero processing from root to lip.

I-502 establishes precedent for growing, processing, retailing and possessing marijuana. Essentially, a system will be built from the ground up. The initiative provides the WSLCB until December 1, 2013 to craft rules for implementation. We expect that it will take the full year to craft the necessary rules which will provide the framework for the new system. As we develop the rules we will keep in mind our top priority, public safety.

But come Dec 6, possession of up to an ounce will legal at the state level for everyone. Already the Medical MJ is a total joke, with possession of up to 15 plants (plus up to another 30 if growing for others = 45) allowed.

He is, but the legal structure for a legal marijuana regime must be in place by next July. It’s in the state Constitution.

The feds can do what they wilt, and I’m sure they will. I suspect, though, that due to limited resources, political considerations, and just common sense that they’ll focus on making sure Colorado weed stays in Colorado. Right now there’s 2 states. Next time around there might be 5, so they’ll be careful to set the template.

(I have to say, too, that the crackdown was mild. There are still tons of weed stores in Denver openly selling dozens of varieties of really good locally grown marijuana to people with red cards. All shops located within a certain number of yards of a school were closed or moved. That’s it, really. Big crackdown…)

Hickenlooper’s joke about the Cheetos though is significant, I think. He could have hinted at the nonsense about it being a gateway drug, about how it will ruin your life and all that drug war stuff. But no, he jokes that it gives you the munchies. The governor of a state making stoner jokes! That’s awesome.

Jared Polis was re-elected, too. He’s only one guy in the House, but he’s a safe pro-pot vote in the national arena. I love Colorado Democrats, man.

Wow!! Lets CREATE another uninspiring generation of slow thinkers. Lets create a larger population of drug users to solve the environmental and financials problems of our country.

I AM REALLY DISAPPOINTED THAT THEY DID NOT LEGALIZE CRACK AND HEROIN SO THAT WE CAN TAX AND USE LEGALLY IN THE PRIVACY OF OUR HOMES. I RATHER HAVE A BROAD SELECTION OF CHOICES THAN JUST CIGARETTES, ALCOHOL, AND MARIJUANA.

IT IS SAD TO SEE ELEMENTARY CHILDREN COMING TO SCHOOL STINKING OF POT FROM RESIN FROM THEIR LIVING ENVIRONMENT. IT IS DISRUPTIVE TO EVERYONE ELSE IN THE ROOM. WONDERFUL IDEA TO LET THE WHOLE POPULATION GROW A PUNGENTLY STICKY PLANT. JUST LET PHILIP MORRIS OR PEPSI DO IT ALL. NOT 6 PLANTS FOR THE WHOLE POPULATION IN COLORADO.

ALTHOUGH WAKE AND BAKE EVERYDAY LEGALLY WITHOUT HIDING BEFORE GOING IN TO TEACH A BUNCH OF BRATTY CHILDREN SOUNDS HIGHLY APPEALING. :p